Sardar v NHS Commissioning Board

In a clinical negligence claim concerning obstetric brachial plexus injury, the mere occurrence or severity of the injury does not establish negligent traction. Causation may involve maternal and uterine propulsive forces, impact involving a posterior shoulder, clinician-applied force, or a combination of factors. The claimant must prove factual evidence of excessive force or other inappropriate management. The applicable standard is that of the reasonably competent practitioner performing the relevant function, judged by the standards prevailing at the time. Each claim depends on its own facts and evidence.

The claimant alleged that hospital staff negligently managed his birth in 1989 by applying excessive forceps traction after encountering shoulder dystocia. He suffered a severe right-sided brachial plexus injury, Erb’s palsy and Horner’s syndrome. The defendant contended that the injured shoulder was posterior and was damaged during labour by natural forces and impact with the sacral promontory, or that any traction applied was reasonable.

The principal issues were the baby’s position on admission and delivery, the position of the injured shoulder, the mechanism of injury, and whether any hospital staff had acted negligently.

1. Applicable standard. The court applied the ordinary skilled practitioner standard described in Bolam and Bolitho. The relevant benchmark was that of a reasonably competent doctor, nurse or midwife performing the relevant functions in a general district hospital, judged by the standards and knowledge existing in 1989.
2. Position of the baby. The contemporaneous record that the baby was “ROA” on admission was accepted as accurate. The court also accepted that the baby was “OP” on delivery. The evidence, including the Gardberg paper, showed that a baby delivered OP was more likely than not to have started labour OA and then rotated during labour. The injured right shoulder was therefore posterior at delivery.
3. Causation. The court rejected the contention that a severe brachial plexus injury necessarily proved excessive traction. The evidence supported a multifactorial mechanism involving strong cervical contractions, the posterior shoulder’s impact with the sacral promontory and the baby’s exceptional size. Natural endogenous forces could cause such injury, and the assumption that injury itself proves negligent traction was no longer valid.
4. Negligence. There was no evidence of excessive traction or other inappropriate management. The allegations concerning failure to apply suprapubic pressure and application of fundal pressure were not established. The severity of the injury did not create an irresistible presumption of negligence.
5. Experts and outcome. Expert witnesses were required to comply with their overriding duty to the court under Civil Procedure Rules 1998 Part 35. The claimant’s claim was dismissed.

First-instance decision. No prior appellate decision is stated in the judgment.